The Fourth Department, over a dissent, determined defendant was not entitled to reversal of the rape conviction based on the six-year preindictment delay. The dissenter would have reversed, finding the delay deprived defendant of due process:
In determining whether defendant was deprived of due process, we must consider the factors set forth in People v Taranovich (37 NY2d 442 ), which are: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . * * *
There is no indication that the “delay was caused by any bad faith on the part of the People” … . Instead, the delay was largely caused by the efforts of the People and law enforcement “to acquire substantial corroborating evidence in order to prove defendant’s guilt beyond a reasonable doubt” … . Nevertheless, it is true, as defendant points out, that extensive periods of delay may fairly be attributed to neglect by the People and law enforcement in the investigation. But even assuming, arguendo, that [this] factor weighs in defendant’s favor, three of the five factors favor the People, and we thus conclude that the court did not err in denying that part of defendant’s omnibus motion seeking to dismiss the indictment on due process grounds.
From the dissent:
The People … failed to present a valid reason for the delay … . As of September 2006, when the prosecution was made aware of DNA evidence linking defendant to the crime, the prosecutor possessed all information necessary to charge defendant, and the record reveals no reason, plan, or deliberate decision to delay defendant’s arrest until it was eventually made in January 2013. Instead, the record reflects that the explanation for the over six-year delay was simply inadvertence, which is an insufficient reason as a matter of law … . People v Stefanovich, 2022 NY Slip Op 04241, Fourth Dept 7-1-22
Practice Point: There was a six-year delay between when the People became aware of DNA evidence linking defendant to the crime and defendant’s arrest. The majority held the delay did not deny defendant of due process. The dissenter argued the People demonstrated only that the delay was the result of “inadvertence,” which is an insufficient reason.